Wednesday Writs: Michael Avenatti Chalks Up a W Edition

Photo by Luke Harold, CC0, via Wikimedia Commons

[WW1]
Representing one’s self in court is a bad idea, generally. Even if you happen to be a lawyer. But not all bad ideas are doomed to failure. Ask Michael Avenatti, who handed some Assistant United States’ Attorneys their asses in his federal criminal trial. Avenatti, who made a name for himself first by his representation of Stormy Daniels in her battle with Donald Trump, had himself a brief stint as a candidate for the Democratic presidential nomination, and then crashed spectacularly into criminal charges of embezzlement and fraud, asked for and was granted a mistrial.

The issue was the non-disclosure by the government of financial records — some 1800 documents — to which Avenatti was entitled, a major no-no at any and all levels of the judicial system. Michael Avenatti argued that the records contained information about costs and expenses he had paid on behalf of clients and could potentially be exculpatory. He argued to Judge James Salna that the government committed a “Brady violation”, a reference to the 1963 case of Brady v Maryland in which the Supreme Court held that prosecutors must disclose to a defendant any and all evidence that may be favorable to him or her.

Judge Salna agreed, though he opined that the government’s failure was not intentional or in bad faith. Nevertheless, he found that significant prejudice had occurred as a result, prejudice that could not be remedied by anything less than calling a halt to the now 6-week-old trial. Prosecutors can start over, and it is expected that they will.

How did lawyers for the DOJ, whom one could fairly expect to be among the best in their field, screw up something so hugely important? There really isn’t an excuse, though there is, at least, a tentative explanation.

See, you can’t just go rooting through a lawyer’s files. There is all kinds of privileged information in there that prosecutors don’t need to see. To avoid this, the Justice Department appointed what they call a “taint team”, whose job it is to go through all the files seized from Avenatti’s firm and pull out anything that is privileged and irrelevant to the case. The prosecutors theorize that perhaps the documents Michael Avenatti had requested — repeatedly — had been inadvertently held back by the taint team.

This does not absolve the prosecution. The state is the government is the prosecution. It is still a Brady violation by the prosecution, even if it was another government entity responsible for the mistake. If a police officer withholds exculpatory evidence from a prosecutor, the fact that the prosecutor was unaware of its existence does not alleviate their Brady obligations. The defendant is no less prejudiced.

Well, you may think, these records are Michael Avenatti’s own business records, so why should the government have to provide them to him? For one thing, all of his files, including electronic files, were seized in a raid. Furthermore, the burden is on the state. If the state’s intent is to prove that Michael Avenatti stole or misappropriated money that belonged to his clients, records showing legitimate costs and expenses paid on their behalves in furtherance of their cases is important to Avenatti’s defense.

What makes it more egregious, in my view, is that Michael Avenatti has brought the issue up several times throughout the course of the trial and the government only just produced the documents this week, preventing him from addressing their existence in his opening statement or to question witnesses about them. It really boggles the mind that this kind of mistake occurred in a case this big, with so many eyes on it. You’d think the justice department would bring their A-Game.

Whether this will amount to much in the end, with the retrial beginning in October, is debatable. He may well be convicted, though perhaps his restitution will be less than it would have been or the sentencing guidelines adjusted lower. And he’s already been sentenced for his attempt to extort Nike, so I wouldn’t exactly say Michael Avenatti is a winner here. But he did manage to make the AUSAs on the case look like a bunch of losers.

[WW2]
Normally, state level disciplinary hearings for lawyers are dry affairs, but not this one. The Bar Counsel for the Massachusetts Board of Bar Overseers “stand accused of withholding potential exculpatory evidence in one of the state’s drug lab fiascoes.”

Legal observers say it will be difficult to determine punishment, because there aren’t many other cases that have so profoundly affected the Massachusetts criminal justice system. Former BBO member Elizabeth N. Mulvey, founding partner in the firm Crowe & Mulvey, said the effects of the drug lab scandals ultimately may be a factor in how these attorneys are punished.

“It certainly makes intuitive sense that the overall impact on the justice system should be a factor in determining discipline,” Mulvey said. “But off the top of my head I can’t think of a real good analogy for something that has caused anything near this scope of harm.”

To date, the Massachusetts attorney general’s office has spent about $1 million in legal fees to defend Kaczmarek, Verner and Foster.

[WW3]
The headline sounds like the set up to a lawyer joke, but there isn’t anything funny about this situation: “Fight heats up between pardoned man’s lawyers and judge. The lawyers have hired a lawyer.”

[WW4]
Tyranny often works through the cover of the law: Hong Kong Edition

Five candidates pledging “professionalism” over politics swept an election for Hong Kong’s Law Society council, shattering the hopes of a camp that wanted tougher action to defend the rule of law in the global financial hub. Five of the governing council’s 20 seats were up for grabs.

A society statement early on Wednesday confirmed that candidates widely seen as pro-establishment won all the open seats. The traditionally low-profile election was unusually fraught this year amid the pressures of a sweeping national security law. Officials and pro-Beijing media accused some candidates of political bias.

One of the three candidates described as “liberal” by pro-Beijing media, incumbent Jonathan Ross, withdrew over the weekend, saying he wanted to protect the safety of himself and his family.

“Professionalism is very important,” she said. “In terms of politics, we are apolitical.”

[WW5]
Tyranny often works through the cover of the law: Belarus Edition

Seven lawyers interviewed by Reuters say their licenses were removed after defending protesters, speaking out against authorities or resisting what they said was pressure on their profession. Several of them allege that authorities monitored confidential client meetings or obstructed their work. Reuters was unable to independently corroborate their assertions or the text message described by Kirilyuk.

Lukashenko’s office didn’t respond to requests for comment. The president in March said there was a need to “put things in order” in the legal profession, according to comments published in the state-controlled Belarus Today news outlet.

[WW6]
Behold! The pitch for Avengers: Lawsuit

Scarlett Johansson’s lawyers want their day in court.

The legal team responded over the weekend to a court filing from Disney seeking private arbitration of her “Black Widow” lawsuit.

“After initially responding to this litigation with a misogynistic attack against Scarlett Johansson, Disney is now, predictably, trying to hide its misconduct in a confidential arbitration,” John Berlinski, an attorney at Kasowitz Benson Torres who represents Johansson, said in a statement Saturday.

“Why is Disney so afraid of litigating this case in public?” he asked.

Since July 29, when Johansson filed her lawsuit against the entertainment giant for breach of contract, lawyers on both sides have traded barbs in the press. Disney claims it upheld its end of the deal by giving the film a wide theatrical release, while Johansson’s lawyers say the company cut corners during the pandemic to boost its new streaming service and deny their client millions in backend payments.

Disney’s latest filing, which was submitted Friday to the Los Angeles County Superior Court, seeks to keep future legal battles behind closed doors. The company claims that Periwinkle, the company representing Johansson, agreed that all claims “arising out of, in connection with, or relating to” Johansson’s “Black Widow” work would be submitted to confidential, binding arbitration in New York.

It also contested that Marvel was not named as a party in the lawsuit, suggesting that Johansson’s lawyers were using “gamesmanship” to generate publicity in targeting the studio’s parent company. Had Marvel been named, the suit alleges, the complaint would automatically have gone to private arbitration.

Disney’s main argument against Johansson is that it adhered to the “wide theatrical release” requirement of the contract that stipulated the film would not be placed on less than 1,500 screens.

“There is nothing in the agreement requiring that a ‘wide theatrical release’ also be an ‘exclusive’ theatrical release,” Disney’s filing states.

Disney also said it assured the actor that 100% of the proceeds from streaming receipts would be used to calculate additional compensation.

On the other side of the suit, Johansson claims her agreement with Disney’s Marvel Entertainment guaranteed an exclusive theatrical release for her solo film. Her lawyers said the language of the contract indicated the Marvel film would get a typical theatrical release “like its other films.” No other Marvel film has been released on streaming at the same time as its theatrical release.

The actor’s initial contract was signed two years before the launch of Disney+. According to Johansson’s lawsuit, the actor contacted Marvel in early 2019 after Disney executives suggested that the new streaming service could be used to launch titles from its comic book franchise.

Her lawsuit includes a response from Marvel’s chief counsel.

“We understand that should the plan change, we would need to discuss this with you and come to an understanding as the deal is based on a series of (very large) box office bonuses,” the response reads.